In re Levon A.

• Court: Maryland Court of Appeals
• Writing for the Court: HOLLANDER.
• Citation: In re Levon A., 124 Md. App. 103, 720 A.2d 1232 (Md. App. 1998)
• Decision Date: 03 December 1998
• Docket Number: No. 205,205
• Parties: In re LEVON A.

720 A.2d 1232

124 Md. App. 103

In re LEVON A.

No. 205, September Term, 1998.

Court of Special Appeals of Maryland.

December 3, 1998.

Mark Colvin, Assistant Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Mary Ann Ince, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Patricia Jessamy, State's Attorney for Baltimore City on the brief), Baltimore, for appellee.

Argued before HARRELL and HOLLANDER, JJ., and ALBERT J. MATRICCIANI, Jr., Judge, Specially Assigned. HOLLANDER, Judge.

In the Circuit Court for Baltimore City, Levon A., a juvenile, was found to have committed the delinquent act of unauthorized use of a motor vehicle. At the time of the offense, Levon was fourteen years old. Levon was thereafter placed on probation, and he and his mother, Ruth A.¹, were ordered to pay restitution of $443.73 to the owner of the vehicle. In addition, Ms. A. was ordered to pay restitution of $1,690.17 to the owner's insurance company, State Farm Mutual Automobile Insurance Company ("State Farm").

On appeal, we are asked to consider one question: "Did the juvenile court err in ordering Levon and his mother to pay restitution totalling $2,133.90?"² For the reasons that follow, we are convinced that it did. Accordingly, we shall vacate the order of restitution and remand to the circuit court for further proceedings. We shall also deny the State's "Motion to Strike Appendix to Appellant's Reply Brief", in which the State complains about a six-page excerpt of the transcript from the exceptions hearing that was appended to the reply brief.

Factual Background

Levon was charged in a delinquency petition with various offenses stemming from his alleged involvement in October 1996 in the theft and unauthorized use of a 1993 Jeep Grand Cherokee, including theft over $300, in violation of Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 342; unauthorized use, in violation of Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 349; and malicious destruction of property, in violation of Md.Code (1957, 1996 Repl. Vol.), Art. 27, § 111. An adjudicatory hearing was conducted by a juvenile master on February 28, 1997, at which several witnesses testified. What follows is a summary of the evidence adduced at the hearing.

H. Edward Andrews III, an attorney, was the owner of the Jeep. He testified that on the morning of October 17, 1996, he drove his automobile to the District Court located on North Avenue in Baltimore City to meet with a prosecutor about a case. At about 9:15 a.m., Andrews parked his vehicle on a street behind the courthouse, secured it with "The Club," locked the doors, and went inside. When he returned approximately forty-five minutes later, the Jeep was gone. Andrews immediately reported the missing vehicle to a policeman inside the courthouse.

Later that evening, Andrews learned that his automobile had been involved in a police chase involving two juveniles. When Andrews recovered his Jeep at a Baltimore City impoundment lot, he observed that it was damaged on the front and right side, the ignition was missing, and glass from the right rear passenger window littered the seat and floor. Moreover, audio tapes that had been in the glove compartment were damaged, and "The Club," approximately seventy dollars in cash and coins, a wool blanket, and a mug, were missing. On November 27, 1996, Andrews filed a Notice of Claim for Restitution.

Baltimore City Police Officer Anthony DiNunno testified that on the afternoon of October 17, 1996, he was in an unmarked car when he saw two boys who were too short "to see over the dashboard," driving a Jeep Grand Cherokee southbound in the 4700 block of Harford Road. After verifying that the Jeep had been reported as stolen, the officer called for backup and followed the vehicle. In an attempt to evade police, the vehicle "smashed" into a wooden fence and "crashed" into trees and shrubbery at the end of a private driveway. The "vehicle [landed] in an upright position with the front wheels off the ground." The driver, fifteen-year-old Antonio John M. (John), ran from the Jeep but was apprehended nearby. Appellant, who was the passenger, was arrested before he was able to exit the vehicle.

Levon testified that while walking home from school on October 17, 1996, he saw his friend, John, driving a Jeep, and John offered Levon a ride home. Levon thought his friend was old enough to drive, and that the Jeep belonged to one of John's relatives, because John's family owned several cars, including a Cadillac, a station wagon, and a truck. When Levon entered the vehicle, he claimed he did not know it had been stolen, nor did he notice the broken window or the missing ignition.

According to Levon, before John drove Levon home, John stopped at his mother's house. Levon claimed that John told him the car was stolen when they were leaving John's house. Because Levon thought John was "playing with [him]", he did not ask John to stop the car and let him out. When Levon noticed a police car following them, however, he understood that John was serious. Levon explained:

On the way from his house, he was going to drop me off at my house, so he seen the police. He's like, the police is behind us. And I was like, so? He was like, it's stolen. Then that's when I knew, because he had told me before, about his plans. Then when he started turning and stuff, that's when I knew he was going to wreck.

At the conclusion of the hearing, the master found that Levon had committed the offense of unauthorized use. As to the remaining counts, the master found "facts not sustained."³ The master said, in part:

The evidence in this matter is fairly clear. This young man was told that the car was stolen. He thought that [John] was joking. The window, the vent of the window was broken. The ignition was broken, although this young man said he didn't see it. He had an opportunity to see it from his vantage point in the front seat. The Respondent at least in this matter should have known the car was stolen.

On March 25, 1997, the master held a restitution hearing at which Levon was represented by counsel.⁴ Although Levon's mother was present, she did not have an attorney. Three witnesses testified: Andrews; Patricia Welch, a Claims Specialist for State Farm; and Ms. A. Andrews and State Farm claimed a total of $2,174.40 in damages.

Welch testified that the insurer paid Andrews $1,690.17 to repair the Jeep. The repairs included 1) a new front bumper cover; 2) a new ignition lock cylinder and switch assembly; 3) new weatherstripping; 4) a new rear passenger window; and 5) replacement of a decal on the front quarter-panel. Andrews testified that the items inside the vehicle that were missing or damaged had a value of $484.23, as follows:

The Club $ 42.00 Wool Blanket $ 40.00 Mug $ 7.50 Cash and Coins $ 70.00 37 Tapes $324.73

Andrews arrived at the values of "The Club," blanket, mug, and tapes based on the original cost of the items or by ascertaining the current replacement cost for the items. For example, he determined the price of "The Club" by going to Wal-Mart, where he had purchased the item two years before the incident, and noted that the same model now sells for $42.00. The blanket was purchased in Scotland at a cost of $40.00. With regard to the cash that was in the vehicle when the offense occurred, Andrews testified that in August 1996, his daughter counted the money in his ashtray and found that he had $84.80. He estimated that he had used $14.80 for tolls and parking since that time, leaving a total of $70.00 in the vehicle at the time of the incident.

At the time of the restitution hearing, Ms. A. lived in an apartment with Levon and three of her other children, ages 10, 12, and 16.⁵ Between the time of Levon's delinquent act and the time of the adjudicatory hearing, however, Ms. A.'s children were in foster care, because there was no room for the children at Ms. A.'s mother's house, where Ms. A. was living at the time. According to Ms. A., her children all have the same father, but he has no contact with them, and is "thousands" of dollars in arrears with regard to child support. Indeed, Ms. A. testified that she has never received assistance from him. Ms. A. also acknowledged that she is a former addict, and she had been incarcerated for a drug offense some three years prior to the restitution hearing.

At the time of the restitution hearing, Ms. A. was employed as a housekeeper at Kernan Hospital, where she was earning $6.00 an hour. She indicated that she did not receive any additional social service benefits or a housing subsidy. According to Ms. A., her take-home pay was $197.00 a week. From that amount she paid the following monthly expenses: $300.00 for rent, $200.00 for food, approximately $50.00 for the telephone, $75.00 in utility fees, and $80.00 for work-related transportation. Ms. A. explained that what she spent for clothing and other items "varie[d] because I can't give them things or everybody something. Like this month, it has to be one this month and then next month and like that."

The master advised Ms. A. that the court could assess restitution against her as well as Levon. He then asked Ms. A. if there was anything she would like to add. The following colloquy ensued:

MS. A.: Only that I'm struggling, you know, I am clean and that's going on three years now. I'm doing the best that I can trying to raise these children by myself. Their father has nothing to do with them. He sends them nothing. He don't see them.

THE MASTER: Well, let me ask. Has there been any order of child support passed in this matter?

MS. A.: Oh, yes. I mean, I have been on Social Services. I was there the majority of the time, and I did take him downtown for all of them, you know, but I have never received a check whatsoever, no child support— THE MASTER: Do you know how much he's in arrears, how much he owes?

MS. A.: All I know is thousands, the

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